Law Commons^™

Intersectional Complications Of Healthism, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

For Americans in the labor market with health conditions that fall outside the scope of the ADA, the rehabilitation Act, and GINA, antihealthism legislation, like the kind proposed by Roberts and Leonard, 9would unquestionably serve as a critical first step in increasing their legal protections in the workplace. Moreover, to the extent that such legislation would also operate outside the workplace, it could expand legal protections even for individuals who presently enjoy coverage by disability and genetic discrimination laws solely inside the workplace. Yet, as this article has argued, simple healthism-discriminatory animus based solely on health-may be surprisingly rare. Existing …

Frontiers Of Sex Discrimination Law, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

A short time ago, the argument that sex discrimination includes discrimination on the basis of sexual orientation was considered a risky litigation tactic with little hope of success. One reason was the fear that extending sex discrimination law so far would upset all sex classifications, even those on restroom doors. But the landscape has shifted. The EEOC now takes the position that sex discrimination includes all forms of discrimination based on sexual orientation and gender identity. Administrative agencies interpret federal law to require that workers and students be allowed to use restrooms consistent with their gender identities. Some federal courts …

Keeping Gideon's Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Lauren Sudeall, Brandon Buskey

Vanderbilt Law School Faculty Publications

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court's right to counsel jurisprudence in this area has remained stagnant. Critics of the …

An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall

Vanderbilt Law School Faculty Publications

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove …

Behavioral Science Tools To Strengthen Energy & Environmental Policy, Michael P. Vandenbergh, Erez Yoeli, David V. Budescu, Et Al.

Vanderbilt Law School Faculty Publications

To increase consumers’ conservation of energy and other resources,government agencies, utilities, and energy-related businesses can complement regulatory and market-based policies with simple and effective behavioral interventions grounded in extensive behavioral science research. In this article, we review behavioral tools that we find especially promising. Collectively, these tools help meet four behavioral objectives:getting people’s attention; engaging people’s desire to contribute to the social good; making complex information more accessible; and facilitating accurate assessment of risks, costs, and benefits.

Minor Courts, Major Questions, Michael Coenen, Seth Davis

Vanderbilt Law Review

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court deferred to an agency's controversial interpretation of a key provision of a regulatory statute. Lower courts now apply "Chevron deference" as a matter of course, upholding agencies' reasonable interpretations of ambiguous provisions within the statutes they administer. Recently, however, the Court refused in King v. Burwell to defer to an agency's answer to a statutory question, citing the "deep economic and political significance" of the question itself. The Court in King offered barebones guidance regarding the scope of and rationales for embracing this so-called "major questions exception" …

Undemocratic Restraint, Fred O. Smith, Jr.

Vanderbilt Law Review

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed prudential limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch's avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine. The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not …

Reading Remedially: What Does "King V. Burwell" Teach Us About Modern Statutory Interpretation, And Can It Help Solve The Problems Of Cercla § 113(H)?, Benjamin Raker

Vanderbilt Law Review

In the latter half of the twentieth century, Congress drafted a law to solve a problem. As decades passed, that problem became increasingly complex. In the new millennium, Congress became increasingly polarized, and increasingly unproductive. In the face of that inaction, the executive branch decided to rely on a provision of that earlier law to address a modern facet of that earlier problem. Or litigants decided to ask a court to rely on a provision of that earlier law to address a modern facet of that earlier problem. The Congress that drafted the law might not have understood this modern …

A Distinction Without A Difference: Convergence In Claim Construction Standards, Laura E. Dolbow

Vanderbilt Law Review

In 2007, a district court found a patent for a medical device valid. While the district court litigation was pending, however, the Patent and Trademark Office ("PTO") found the exact same patent invalid. The Court of Appeals for the Federal Circuit then affirmed both decisions. At first glance, the idea that a patent could be found valid in one forum but invalid in another seems absurd. Yet the law condones these results: district courts and the PTO apply different claim construction standards. The Leahy-Smith America Invents Act of 2011 ("AIA") created new post-grant proceedings at the PTO to challenge patent …

Saving The Political Consensus In Favor Of Free Trade, Timothy Meyer

Vanderbilt Law Review

2016 was the year that the political consensus in favor of liberalized international trade collapsed. Today, across the world, voters' belief that international trade agreements lead to economic inequality threatens to derail ratification of the next generation of trade agreements and undo the substantial gains made under existing arrangements. The United States elected Donald Trump president on a platform of rolling back or renegotiating trade agreements. President Trump has moved to fulfill that promise immediately upon taking office by "unsigning" the Trans-Pacific Partnership ("TPP), the most recent major effort to liberalize global trading rules, and initiating efforts to renegotiate the …

Predicting The Knowledge: Recklessness Distinction In The Human Brain, Owen D. Jones, Iris Vilares, Michael J. Wesley, Woo-Young Ahn, Et Al.

Vanderbilt Law School Faculty Publications

Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria.

We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those …

No Vip Treatment: Acos Should Not Get Waiver Protection From The Prohibition On Beneficiary Inducement, Soraya Ghebleh

Vanderbilt Law Review

Virgil is known for saying "the greatest wealth is health."' Based on the astronomical amount spent on healthcare, the United States has taken his idea literally-spending more "wealth" will lead to greater "health." In 2006, the United States spent over seven thousand dollars per person annually on healthcare. While that number may not seem very high to spend on an individual level, the total amounted to approximately 2.1 trillion dollars in 2006. In 2014, that number hit three trillion, or seventeen percent of the country's Gross Domestic Product ("GDP"). One justification for spending nearly one-fifth of the United States GDP …

Terrorist Speech On Social Media, Alexander Tsesis

Vanderbilt Law Review

The presence of terrorist speech on the internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and …

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Vanderbilt Law Review

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today's most …

Causal Responsibility And Patent Infringement, Dmitry Karshtedt

Vanderbilt Law Review

It is not uncommon for multiple parties in the stream of commercemanufacturers, distributors, end users-to be involved in the infringement of a single patent. Yet courts continue to struggle with such scenarios. Attempts to deal with them-particularly when plaintiffs asserted so-called method patents, which cover specific "steps," or actions-have produced results that defy commonsense notions of legal responsibility. In method patent cases, the patentee must clear much higher legal hurdles to prevail against a manufacturer who designed and supplied an infringing device than against an end user who simply bought that device and operated it as intended. The manufacturer can …

Unambiguous Deterrence: Ambiguity Attitudes In The Juvenile Justice System And The Case For A Right To Counsel During Intake Proceedings, Hannah Frank

Vanderbilt Law Review

According to the traditional rational choice theory of criminal behavior, people choose to commit crimes in a rational manner.' They weigh the costs and benefits and make informed decisions to maximize their utility. Under this framework, the state can deter crime through two main avenues: increasing the probability of detection and increasing the punishment if caught, both of which increase the total cost of committing a crime. Recently, however, behavioral insights have begun to cast doubt on traditional rationality assumptions. Lab experiments and empirical studies using real-world data have shown that people exhibit bounded rationality. For example, individuals have limited …

Public Attitudes Towards Consent And Data Sharing In Biobank Research, Ellen Wright Clayton, Saskia C. Sanderson, Kyle B. Brothers, Nathaniel D. Mercaldo, Other Contributers

Vanderbilt Law School Faculty Publications

Individuals participating in biobanks and other large research projects are increasingly asked to provide broad consent for open-ended research use and widespread sharing of their biosamples and data. We assessed willingness to participate in a biobank using different consent and data sharing models, hypothesizing that willingness would be higher under more restrictive scenarios. Perceived benefits, concerns, and information needs were also assessed. In this experimental survey, individuals from 11 US healthcare systems in the Electronic Medical Records and Genomics (eMERGE) Network were randomly allocated to one of three hypothetical scenarios: tiered consent and controlled data sharing; broad consent and controlled …

Legal And Institutional Foundations Of Adaptive Environmental Governance, J.B. Ruhl, Daniel A. Decaro, Brian C. Chaffin, Edella Schlager

Vanderbilt Law School Faculty Publications

Legal and institutional structures fundamentally shape opportunities for adaptive governance of environmental resources at multiple ecological and societal scales. Properties of adaptive governance are widely studied. However, these studies have not resulted in consolidated frameworks for legal and institutional design, limiting our ability to promote adaptation and social-ecological resilience.We develop an overarching framework that describes the current and potential role of law in enabling adaptation. We apply this framework to different social-ecological settings, centers of activity, and scales, illustrating the multidimensional and polycentric nature of water governance. Adaptation typically emerges organically among multiple centers of agency and authority in society …

Reconstructing Local Government, Daniel Farbman

Vanderbilt Law Review

After the Civil War, the South faced a problem that was almost entirely new in the United States: a racially diverse and geographically integrated citizenry. In one fell swoop with emancipation, millions of former slaves were now citizens. The old system of plantation localism, built largely on the feudal control of the black population by wealthy white planters, was no longer viable. The urgent question facing both those who sought to reform and those who sought to preserve the "Old South" was: What should local government look like after emancipation? This Article tells the story of the struggle over the …

The Substantially Impaired Sex, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

In making the case for increased attention to and expanded legal remedies for disabled women who experience labor market discrimination, this Article proceeds as follows: Part I reviews previous work on intersectional discrimination, which, heretofore, has focused almost exclusively on the experience of African-American women. Part II examines the EEOC data, which details the universe of ADA charges filed with the agency from 2000 to 2009. The EEOC data make clear how men's and women's disability charges differ, and the data also provide a great deal of evidence as to why men's and women's disability charges differ. Part III considers …

How Should Justice Policy Treat Young Offenders?, Owen D. Jones, B. J. Casey, Richard J. Bonnie, Et Al .

Vanderbilt Law School Faculty Publications

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

I Dissent: The Federal Circuit's "Great Dissenter," Her Influence On The Patent Dialogue, And Why It Matters, Daryl Lim

Vanderbilt Journal of Entertainment & Technology Law

This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation's principal patent court from empirical, doctrinal, and policy perspectives. It offers several insights into how the Federal Circuit reaches consensus and when it does not, serving as a window into its inner workings, a reference to academics, judges, and attorneys alike. More broadly, this Article provides a template to study the "legal dialogue" of other judges at the Federal Circuit, those in other Circuits, as well as those in other areas of the law. …

Intergalactic Property Law: A New Regime For A New Age, Alison Morris

Vanderbilt Journal of Entertainment & Technology Law

In November 2015, Congress passed the Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015 ("the SPACE Act'), which allows private American companies to own any resources they collect from mining in space. This, however, conflicts with current international treaties to which the United States is a party, such as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space ("the Outer Space Treaty'), which was adopted by the United Nations in 1967. Thus, without some changes, either the SPACE Act will be rendered useless or the United States will be in direct …

Nudging Robots: Innovative Solutions To Regulate Artificial Intelligence, Michael Guihot, Anne F. Matthew, Nicolas P. Suzor

Vanderbilt Journal of Entertainment & Technology Law

There is a pervading sense of unease that artificially intelligent machines will soon radically alter our lives in ways that are still unknown. Advances in artificial intelligence (AI) technology are developing at an extremely rapid rate as computational power continues to grow exponentially. Even if existential concerns about AI do not materialize, there are enough concrete examples of problems associated with current applications of AI to warrant concern about the level of control that exists over developments in this field. Some form of regulation is likely necessary to protect society from harm. However, advances in regulatory capacity have not kept …

Augmenting Property Law: Applying The Right To Exclude In The Augmented Reality Universe, Samuel Mallick

Vanderbilt Journal of Entertainment & Technology Law

This Note considers whether and to what extent the property right to exclude applies to virtual space in the augmented reality (AR) universe. It provides an overview of AR's development and uses, as well as a review of property law concerning the right to exclude. By considering the consequences of previously proposed regulatory schemes in light of four hypothetical AR applications, this Note demonstrates that these solutions do not adequately balance the societal benefit achievable through free development of AR applications with landowners' absolute rights to exclude others from their property. This Note proposes adoption of an adjusted "open-range" common …

Dance Like No One Is Watching, Post Like Everyone Is: The Accessibility Of "Private" Social Media Content In Civil Litigation, Nicole A. Keefe

Vanderbilt Journal of Entertainment & Technology Law

An increasing amount of information about an individual manifests in online activity, specifically through the use of the numerous social media platforms available today. Though these platforms offer users the ability to shield content behind various degrees of privacy options, even the most private information might be accessed in the course of robust legal proceedings. This Note analyzes the accessibility of private social media content in civil litigation through the vehicles of the Federal Rules of Civil Procedure, the Model Rules of Professional Conduct, and the Federal Rules of Evidence. The solution suggests methods for incorporating this new technological medium …

Promoting Access Over Ownership: Realigning Antitrust And Intellectual Property Law To Usher In An Era Of Collaborative Consumption, Adrian Kuenzler

Vanderbilt Journal of Entertainment & Technology Law

Following the US Supreme Court's endorsement of the promotion of consumer welfare as the single goal of antitrust and intellectual property laws, many courts have reasserted their commitment to the market access doctrine for antitrust and intellectual property law liability. These courts have rejected the Court's submission in GTE Sylvania to adhere to a strict output/profitability test concentrating predominantly on the positive and negative welfare effects regarding allegedly infringing conduct. This Article examines several important antitrust and intellectual property law decisions and locates within them a common flaw to express an intelligible, distinct doctrinal function for giving precedence to market …

Copyright Paternalism, Kevin J. Hickey

Vanderbilt Journal of Entertainment & Technology Law

The dominant justification for copyright is based on the notion that authors respond rationally to economic incentives. Despite the dominance of this incentive model, many aspects of existing copyright law are best understood as motivated by paternalism. Termination rights permit authors to rescind their own earlier assignments of copyright. The elimination of formalities protects careless authors from forfeitures of copyright if they fail to register the copyright or place appropriate notice on their works. The law limits how copyrights can be transferred, when rights in emerging media can be assigned, and which works can be designated as "made for hire" …

A Fair Stream: Recommendations For The Future Of Fair Trade Music, Ricardo Hernandez

Vanderbilt Journal of Entertainment & Technology Law

Allied Business Intelligence research suggests that, by 2019, the music streaming industry will reach $46 billion in premium subscription revenues. As the music streaming industry grows, the creators of the musical content appear to be getting left behind. While there are a number of suggestions for why creators of musical content are not receiving their share of the pie, one thing is certain: a new business model is needed. This Note suggests that one possible way to ensure fairness in the music streaming supply chain is through applying the fair trade concept to the music streaming model. As such, this …

Immigrant Families Behind Bars: Technology Setting Them Free, Jennifer Blasco

Vanderbilt Journal of Entertainment & Technology Law

In July of 2015, Judge Dolly Gee from the US District Court for the Central District of California ordered that all immigrant women and children currently detained in a federal family detention facility be released immediately. She described the conditions of these detention centers as "deplorable" and stated that detention of these women and children directly violated the 1997 Flores Agreement. However, the practice of immigrant family detention remains alive and well in this country. Why? This Note provides an answer to this question and proposes a cost-effective and more efficient solution to the problem: electronic monitoring.